| Headnote |
CONSTITUTIONAL LAW: Separation of powers - Issuance of directions by constitutional courts in case of legislative vacuum - HELD: So far as the legislation by court is concerned, as a corollary to doctrine of separation of powers, a judge merely applies the law that it gets from legislature - He is simply not authorised to legislate - However, simply filling up an existing vacuum till legislature chooses to make appropriate laws, does not amount to taking over the functions of legislature - Supreme Court has insightfully identified Art. 32 as the constitutional provision that provides for enforcement of fundamental rights in areas of legislative vacuum - Not only has it held that fundamental rights are limitations upon the State power, but the right to constitutional remedies is itself a fundamental right enshrined in Art. 32 and in the case of an infringement of a fundamental right by State, an aggrieved party can approach the Court for a remedy - Issuance of guidelines and directions, in exercise of powers under Arts 32 and 142, has become an integral part of our constitutional jurisprudence - Courts in India have not violated the mandatory constitutional requirement, rather they have only issued certain directions to meet the exigencies - Some of them are admittedly legislative in nature, but the same have been issued only to fill up the existing vacuum, till legislatureenacts a particular law to deal with the situation - In view of the same, it is permissible to issue directions if the law does not provide a solution of a problem, as an interim measure, till proper law is enacted by legislature - The Court, therefore, may a/so issue necessary directions as an interim measure, if the need has so arisen -- Constitution of India, 1950 -- Arts. 32 and 142. MOTOR VEHICLES ACT, 1988: s. 2(44) and 2(28) - Motor vehicle - 'Tractor', 'Dumper' - Held: Tractor is a motor vehicle in terms of definition u/ss 2(28) and 2(44) - Thus, tractor is a motor vehicle as defined under the Act - Tractor which is used basically for agricultural purpose and a dumper used in the factory premises, can suitably be adapted for being used on the road, therefore, they will meet the requirement of definition of motor vehicle u/s 2(28) - The word ·only' used in s. 2(28) clearly shows that the exemption is confined only to those kinds of vehicles which are exclusively being used in a factory or in any closed premises - Thus, a vehicle which is not adapted for use upon the road, is only to be excluded. s.2(28) - Motor vehicle - 'Jugaad' - Held: Within the meaning of s.2(28), any vehicle which is mechanically propelled and adapted for use on roads and does not fall within the exceptions provided therein, is a motor vehicle - As has been held by Allahabad High Court, 'Jugaad' is squarely covered under the definition of motor vehicles as specified u/s 2(28), since it is mechanically propelled and adapted for use on road and, · therefore, other relevant provisions of the Act/rules are applicable - Therefore, statutory authorities cannot escape from their duty to enforce the law and restrain the plying of 'Jugaad' - They must ensure that 'Jugaad' can be plied only after meeting the requirements of the Act - The same has become a menace to public safety as they are causing a very large number of accidents - 'Jugaads" are not insured and the owners of the 'Jugaad' generally do not have the financial capacity to pay compensation to persons who suffer disablement and to dependents of those who lose life - Thus, considering the gravity of the circumstances, statutory authorities must give strict adherence to the circular - However, it is clarified that it is open to the statutory authorities to make exemptions by issuing a notification/circular specifically if such a vehicle is exclusively used for agricultural purposes but for that sufficient specifications have to be provided so that it cannot be used for commercial purposes - Government of India (Ministry of Shipping, Road Transport and Highways) Circular dated 26. 7.2007, clarifying that 'Jugaad' is a vehicle u/s 2(28). |
